                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-12-00543-CR
                             _________________

                  EMMANUEL KOFI AGBAKPE, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee
________________________________________________________________________

                    On Appeal from the 221st District Court
                         Montgomery County, Texas
                       Trial Cause No. 12-03-03449-CR
________________________________________________________________________

                          MEMORANDUM OPINION

      A jury convicted appellant Emmanuel Kofi Agbakpe of assault causing

bodily injury with family violence, a felony offense due to his previous conviction

for assault with family violence. The jury sentenced Agbakpe to five years in

prison. Agbakpe challenges his conviction arguing that his trial counsel rendered

ineffective assistance of counsel. We affirm.

                                   Background

      In a single issue, Agbakpe contends he was denied effective assistance of

counsel because his trial counsel failed to challenge for cause venireperson number
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14 and venireperson number 25 when each indicated during voir dire that they

would assign a burden of proof to the defendant.

      During defense counsel’s voir dire, he asked a line of questions regarding

the burden of proof. Defense counsel asked a prospective juror if he “would want

[defense counsel] to present some kind of case.” The prospective juror responded,

“Yeah, I would think that you would need to defend your client over there.”

Defense counsel then asked the panel at large if anyone agreed that he would “need

to present some kind of defense[,]” and twenty prospective jurors raised their

hands to indicate agreement. An unidentified prospective juror indicated

disagreement with the statement, and explained that the jury panel had been

instructed that the defendant was presumed innocent. Then one of the prospective

jurors that had indicated that he wanted defense counsel to present a case spoke up

and indicated that he believed the way defense counsel had phrased the question

was misleading. The following exchange took place:

            [Defense Counsel]: These people are just telling me -- they’re
      being honest, and I appreciate that. You want me to put up some kind
      of defense, and that’s understandable.

           [Prospective Juror 13]: But the phrase that you used was “you
      would want me to present a case.”

            [Defense Counsel]: Yes. Yes.

             [Prospective Juror 13]: I want that. Do I need that? That’s a
      different way of looking at it. I want to see both sides of the case to
      make my determination.
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           [Defense Counsel]: And also [Prospective Juror 6] here said he
      would find him guilty if I didn’t, and you see the nuance there?

            [Prospective Juror 13]: No, no. I understand what you’re
      saying there, specifically, but the way that you phrased the question to
      us or to me -- I can’t speak for everybody else, but to me was, “Do
      you want me to present?”

           [Defense Counsel]: And you answered my question which was:
      Would you still want me to present a defense?

             [Prospective Juror 13]: Yes.

The trial court then explained the burden of proof to the panel:

             I think this is a good time to address this. To be clear, the State
      has the burden of proof in this case. They must prove each and every
      element of the offense beyond a reasonable doubt. The Defense does
      not have to prove anything. They do not have a burden at all. If they
      wish to provide a self-defense theory, they can do so. So the question
      is: If you believe beyond a reasonable doubt that the Defendant is
      guilty of the offense of assault, then it would be your duty to return a
      verdict of guilty. If you have a reasonable doubt as to the guilt of the
      Defendant because, possibly, of a self-defense strategy, and you have
      a doubt as to the guilt, then it would be your duty to return a verdict of
      not guilty.

             It’s real clear that the Defendant does not have a burden at all.
      You may wish to hear from the Defendant, but the question you need
      to be able to answer is that you’re not going to require the Defendant
      to put on a case, because if you require that and if he doesn’t do so,
      then you are shifting the burden which is not the law in this case.

The trial court then instructed defense counsel to “go forward and ask any

questions that [he] believe[s] are appropriate.” Defense counsel then proceeded to

ask a question about the presumption of innocence. Defense counsel did not follow

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up individually with the panel members that had indicated they wanted the defense

to present a case. Ultimately, venireperson 14 and venireperson 25, two of the

twenty prospective jurors who answered in the affirmative to defense counsel’s

question of “[s]o you would want me to present some kind of case[,]” served on

Agbakpe’s jury. Defense counsel did not challenge either venireperson for cause,

nor did he exercise a peremptory challenge to remove either venireperson.

                         Effective Assistance of Counsel

      For an appellant to prevail on a claim of ineffective assistance of counsel, an

appellant must show by a preponderance of the evidence that (1) counsel’s

performance was deficient because it fell below an objective standard of

reasonableness; and (2) the deficient performance caused appellant prejudice, that

is, counsel’s deficient performance was so serious that it deprived the defendant of

a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Garza v. State,

213 S.W.3d 338, 347-48 (Tex. Crim. App. 2007); Thompson v. State, 9 S.W.3d

808, 812 (Tex. Crim. App. 1999). The appellant must show there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Bone v. State, 77 S.W.3d 828, 833 (Tex.

Crim. App. 2002). A “reasonable probability” is one sufficient to undermine

confidence in the outcome of the proceeding. Strickland, 466 U.S. at 694;

Thompson, 9 S.W.3d at 812.

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      “Appellate review of defense counsel’s representation is highly deferential

and presumes that counsel’s actions fell within the wide range of reasonable and

professional assistance.” Bone, 77 S.W.3d at 833. An ineffective assistance claim

“must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813.          The

appellant bears the burden to prove by a preponderance of the evidence that his

trial counsel was ineffective. Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim.

App. 1984).

      Usually, a direct appeal is an inadequate method to present an ineffective

assistance of counsel claim because the record is undeveloped. Goodspeed v. State,

187 S.W.3d 390, 392 (Tex. Crim. App. 2005). When the record is silent as to

counsel’s reasons for failing to do something, we review trial counsel’s conduct

with great deference, without the distorting effects of hindsight. Id. Before we

denounce trial counsel’s actions as ineffective, counsel should normally be given

an opportunity to explain the challenged actions. Id. (quoting Rylander v. State,

101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). When counsel has not been given

an opportunity to explain the challenged actions, we will only find deficient

performance if the conduct was “‘so outrageous that no competent attorney would

have engaged in it.’” Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.

App. 2001)). In other words, in the absence of a record explaining the reasons for

                                        5
counsel’s decisions, we will not find counsel’s performance deficient if we can

imagine any reasonably sound strategic motivation for the action. See Garcia, 57

S.W.3d at 440.

      Agbakpe argues that both venireperson 14 and venireperson 25 indicated

that they would hold him to an improper evidentiary burden. He argues that

although the trial court explained the burden of proof to the prospective jurors, his

trial counsel failed to question them individually on whether they would ignore the

law and continue to hold him to an improper burden of proof. On the record before

us, we find Agbakpe did not rebut the presumption that his trial counsel exercised

sound trial strategy. Agbakpe’s complaint about his trial counsel’s representation

during voir dire is the type of complaint that requires a more developed record. We

cannot foreclose the possibility that Agbakpe’s trial counsel had a strategic reason

for failing to further question or challenge venirepersons 14 and 25. See Delrio v.

State, 840 S.W.2d 443, 444-47 (Tex. Crim. App. 1992) (holding that trial counsel’s

failure to challenge a venire member who had voiced his lack of impartiality did

not constitute ineffective assistance when the record was silent as to the reasons for

defense counsel’s decision and the court could speculate as to why defense counsel

may have refused to remove the member from the panel). Agbakpe’s defense

counsel continued to question the potential jurors after the trial court explained the

burden of proof. His trial counsel continued to observe the panel, including

                                          6
venirepersons 14 and 25, and could have determined, based on sound trial strategy,

not to challenge them based on their verbal and non-verbal responses to other

questions or statements. Regardless, in this case, Agbakpe’s trial counsel should be

afforded the opportunity to explain his strategy. See Goodspeed, 187 S.W.3d at

392. Because Agbakpe’s ineffective assistance of counsel claim is not firmly

founded in the record, we overrule his sole issue on appeal and affirm the trial

court’s judgment.

      AFFIRMED.

                                             ______________________________
                                                    CHARLES KREGER
                                                          Justice

Submitted on March 4, 2014
Opinion Delivered May 14, 2014
Do not publish

Before McKeithen, C.J., Kreger, and Horton, JJ.




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