                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-13-00098-CR

SHAWN OWEN WEST,
                                                       Appellant
v.

THE STATE OF TEXAS,
                                                       Appellee



                            From the County Court
                           Limestone County, Texas
                             Trial Court No. 35016


                         MEMORANDUM OPINION


      The jury convicted Shawn West of the offense of driving while intoxicated and

assessed punishment at 180 days confinement and a $2000.00 fine.          The jury

recommended that the confinement and fine portions of the sentence be suspended.

The trial court suspended imposition of the sentence and placed West on community

supervision for 12 months. We affirm.
                            Ineffective Assistance of Counsel

        In his sole issue on appeal, West contends that he received ineffective assistance

of counsel. To prevail on a claim of ineffective assistance of counsel, an appellant must

meet the two-pronged test established by the U.S. Supreme Court in Strickland v.

Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by

Texas two years later in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).

Appellant must show that (1) counsel's representation fell below an objective standard

of reasonableness, and (2) the deficient performance prejudiced the defense. Strickland,

466 U.S. at 689, 104 S.Ct. 2052.

        Unless appellant can prove both prongs, an appellate court must not find

counsel's representation to be ineffective. Strickland v. Washington, 466 U.S. at 687. In

order to satisfy the first prong, appellant must prove, by a preponderance of the

evidence, that trial counsel's performance fell below an objective standard of

reasonableness under the prevailing professional norms. To prove prejudice, appellant

must show that there is a reasonable probability, or a probability sufficient to

undermine confidence in the outcome, that the result of the proceeding would have

been different. Id.

        An appellate court must make a strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance. Lopez v. State, 343

S.W.3d 137, 142 (Tex. Crim. App. 2011). In order for an appellate court to find that

counsel was ineffective, counsel's deficiency must be affirmatively demonstrated in the

trial record; the court must not engage in retrospective speculation.      Id. "It is not

West v. State                                                                       Page 2
sufficient that appellant show, with the benefit of hindsight, that his counsel's actions or

omissions during trial were merely of questionable competence." Lopez v. State, 343

S.W.2d at 142-3. When such direct evidence is not available, we will assume that

counsel had a strategy if any reasonably sound strategic motivation can be imagined.

Lopez v. State, 343 S.W.2d at 143. In making an assessment of effective assistance of

counsel, an appellate court must review the totality of the representation and the

circumstances of each case without the benefit of hindsight. Id.

        During a break in the trial, Juror Frank Lopez spoke to the State’s witness, Officer

Damon Allen. West’s trial counsel moved for a mistrial. The trial court record was

made by audio recording. Portions of the audio recording were inaudible, and this

Court abated the proceeding to the trial court to conduct a hearing and determine

whether any inaudible portions of the reporter’s record were necessary to the appeal

and whether any inaudible portions of the reporter’s record could be replaced by

agreement of the parties. TEX.R.APP.P. 34.6 (f) (3) (4). The trial court held a hearing and

heard the testimony of witnesses concerning the conversation between Juror Lopez and

Officer Allen.    The parties agreed that the testimony from the abatement hearing

“correctly states the substance of the complaint at trial, which was the subject of the

Motion for Mistrial.”

        Officer Allen testified at the abatement hearing that Juror Lopez approached him

and asked about his dad. Juror Lopez said that he worked with Officer Allen’s dad in

the past, and asked Officer Allen about his dad’s retirement. Officer Allen testified that

he did not know Juror Lopez prior to the trial.

West v. State                                                                         Page 3
        West testified at the abatement hearing that his trial counsel moved for mistrial

after learning of the conversation between Juror Lopez and Officer Allen. West stated

that the main concern was that there was a previous relationship between Juror Lopez

and Officer Allen that would negatively affect the trial. West further testified that trial

counsel would have struck Juror Lopez as a juror if he had been aware of the previous

relationship. The parties agreed at the abatement hearing that West’s trial counsel

moved for a mistrial based upon the relationship between Juror Lopez and Officer

Allen and that trial counsel would have used a peremptory challenge against Juror

Lopez had he been aware of the relationship.

        West argues on appeal that his trial counsel was ineffective in failing to conduct a

hearing on the motion for mistrial. West contends that trial counsel should have called

witnesses concerning the prohibited communications and that there cannot be any trial

strategy to urge a motion for mistrial alleging that a juror had prohibited

communications with a witness and not offer any evidence concerning the prohibited

communication. The record shows that the trial court held a hearing in chambers with

Juror Lopez, the State, and trial counsel and that all parties had the opportunity to

question Juror Lopez. Trial counsel learned of the communication, moved for mistrial,

and the trial court held a hearing in chambers. West has not shown that trial counsel’s

representation fell below an objective standard of reasonableness.

        Moreover, because this appeal was abated, the record contains additional

evidence concerning the communication between Officer Allen and Juror Lopez. When

a juror converses with unauthorized persons, a new trial is not required if it is shown

West v. State                                                                         Page 4
that the case was not discussed or that nothing prejudicial to the accused was said.

Drone v. State, 906 S.W.2d 608, 617 (Tex. App.-Austin 1995, pet. ref’d). Officer Allen

testified that Juror Lopez asked him about his dad and that they did not discuss

anything about the case. West has not shown that there is a reasonable probability, or a

probability sufficient to undermine confidence in the outcome, that the result of the

proceeding would have been different. West has not shown that he received ineffective

assistance of counsel. We overrule the sole issue on appeal.

                                       Conclusion

        We affirm the trial court’s judgment.




                                          AL SCOGGINS
                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 24, 2014
Do not publish
[CR 25]




West v. State                                                                     Page 5
