      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00805-CR



                                Burt Eddie Blackwood, Appellant

                                                v.

                                  The State of Texas, Appellee




      FROM THE DISTRICT COURT OF LLANO COUNTY, 33RD JUDICIAL DISTRICT
       NO. CR5488, HONORABLE LLOYD DOUGLAS SHAVER, JUDGE PRESIDING



                               MEMORANDUM OPINION


               A jury found appellant Burt Eddie Blackwood guilty of aggravated sexual assault of

a child and assessed punishment at forty years’ imprisonment. See Tex. Pen. Code Ann. § 22.021

(West Supp. 2004-05). Appellant’s court-appointed attorney filed a brief concluding that the appeal

is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S.

738 (1967), by presenting a professional evaluation of the record demonstrating why there are no

arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573

S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974);

Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex.

Crim. App. 1969). Appellant exercised his right to respond to counsel’s frivolous appeal brief by

filing his own pro se brief.
               In his first pro se point, appellant asserts that his presumption of innocence was

infringed when the jury was allowed to see him in shackles. See Long v. State, 823 S.W.2d 259, 282

(Tex. Crim. App. 1991). The facts asserted by appellant are not reflected in the record before us.

For this reason, the point is overruled.

               Next, appellant urges that the court erred during jury selection by overruling defense

challenges for cause to nine panelists. Each of these panelists was challenged on the ground that he

or she worked with children in some capacity—as a teacher, daycare worker, or counselor. Working

with children, however, is not in itself grounds for a challenge. See Tex. Code Crim. Proc. Ann. art.

35.16 (West 1989 & Supp. 2004-05). Appellant asserts that these panelists were biased against him,

but this is not reflected in the record. Appellant also complains that he was “forced” to accept as a

juror the mother of the county jail administrator, but he did not challenge this panelist for cause. Pro

se point of error two is overruled.

               Appellant’s third pro se point alleges three acts of misconduct by the trial court. He

complains that during voir dire, the court referred to the State as “we.” Appellant refers to the

court’s explanation of the indictment: “The State draws up their indictment. So the State is saying

this is what we believe that we can prove to the jury beyond a reasonable doubt.” The court was not

improperly identifying itself with the prosecution.

               The second alleged act of misconduct also occurred during jury selection, as the court

explained the presumption of innocence and the defendant’s right to remain silent: “Now, I guess

after having said all that, there’s probably still some among you as you’re seated out there right now

saying to yourself, Well, I understand we have a constitution, and I’m real glad we do. But I admit



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that if someone charged me with a crime, I’d sure get up there and tell everybody my side of the

situation.” Clearly, the court was not speaking for itself, but for a hypothetical jury panelist. The

court went on to explain the importance of the right to remain silent and how it grows out of the

State’s burden to prove guilt beyond a reasonable doubt.

                The last alleged act of court misconduct occurred during the complainant’s testimony.

The prosecutor asked her if she had come forward with her accusation “for any reason other than it

was just the truth.” She answered, “Because I heard about another girl—.” The court interrupted

her, saying (as shown in the record) “Opp, opp, opp.” Appellant complains that the court was trying

to stop the witness from answering, which may be true. But this was for appellant’s benefit, as the

court was attempting to stop the witness from suggesting that he had assaulted another person.

                We find no support in the record for the claim of judicial misconduct. Pro se point

of error three is overruled.

                Appellant’s fourth pro se point complains of alleged prosecutorial misconduct.

Appellant points to five examples of what he considers improper questioning, but in each instance

there was either no objection or the defense objection was sustained. Appellant also asserts that the

prosecutor interrupted defense counsel’s jury argument with objections (the objections were

overruled), made comments to the jurors during defense counsel’s argument (the court admonished

the prosecutor to stop this and the defense requested no further relief), and made improper statements

during her own argument (without objection). Finally, appellant urges that the prosecutor adduced

perjured testimony, misrepresented evidence, and asked “loaded questions.” None of these

assertions is supported by the record. Pro se point of error four is overruled.



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               In pro se point of error five, appellant argues that his attorney rendered ineffective

assistance at trial. We apply the familiar Strickland standard: appellant must show that counsel made

such serious errors that he was not functioning effectively as counsel and that these errors prejudiced

appellant’s defense to such a degree that he was deprived of a fair trial. Strickland v. Washington,

466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999);

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).

               Some of appellant’s complaints—counsel failed to investigate the facts of the case,

failed to interview witnesses, failed to consult with appellant’s previous counsel, failed to speak with

appellant, and was unprepared for trial—are based on assertions of fact that are outside the record.

Other assertions—that counsel employed the wrong strategy during jury selection and during the trial

itself—consist of little more than second-guessing. See Delrio v. State, 840 S.W.2d 443 (Tex. Crim.

App. 1992). Appellant also cites a long list of instances in which he claims counsel should have

objected to what appellant considers an improper question or misstatement by the prosecutor, but

in most cases there was no valid ground for objection.

               In reviewing a claim of ineffective assistance, we must indulge a strong presumption

that counsel’s conduct fell within the wide range of reasonable professional assistance. Jackson v.

State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this presumption, any allegation

of ineffectiveness must be firmly founded in the record and the record must affirmatively

demonstrate the alleged ineffectiveness. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

In most direct appeals, the record is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions. Id. That is the case here. Pro se point of error five is overruled.



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               Finally, appellant asserts two evidentiary errors. He claims that witness Kent

Meadows’s testimony contained hearsay. We have examined the record, and find no hearsay or any

objection to hearsay, during Meadows’s testimony.         Appellant also asserts that, during the

punishment stage, the witness through whom appellant’s penitentiary records were introduced should

not have been allowed to describe the contents of the records. Defense counsel’s objection that “the

documents speak for themselves” was overruled. We find no error, much less harm, in allowing the

witness to state that the records contained two judgments of conviction. Pro se point of error six is

overruled.

               We have reviewed the record, counsel’s brief, and the pro se brief. We find nothing

in the record that might arguably support the appeal. Counsel’s motion to withdraw is granted.

               The judgment of conviction is affirmed.




                                              __________________________________________

                                              Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: September 22, 2005

Do Not Publish




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