                                  NO. 07-11-00472-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                  JANUARY 30, 2013


                              IVAN PAUDA, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2009-424,455; HONORABLE JIM BOB DARNELL, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION

      Appellant, Ivan Pauda, appeals his conviction for the offense of aggravated

robbery, and resulting sentence of twenty years confinement in the Institutional Division

of the Texas Department of Criminal Justice. Appellant presents two issues. First,

appellant contends that the trial court erred in accepting appellant’s guilty plea without

inquiring into appellant’s competence.      Second, appellant contends that he was

constructively denied counsel at voir dire when his counsel did not hear the basis upon

which a prospective juror was excused. We will affirm.
                                   Appellant’s Competence


       By his first issue, appellant contends that the trial court erred in accepting his

plea of guilt without inquiring into appellant’s competence. Appellant requests that this

appeal be abated and remanded to the trial court for retrospective competency

proceedings. Concluding that the trial court did inquire into appellant’s competence, we

will overrule appellant’s first issue.


       Before trial, appellant’s counsel filed a motion for psychiatric examination to

determine appellant’s competence to stand trial. The trial court granted appellant’s

motion. As a result, appellant was evaluated and, in a report that was submitted to the

trial court, determined to be competent to stand trial.


       “No plea of guilty . . . shall be accepted by the court unless it appears that the

defendant is mentally competent and the plea is free and voluntary.” TEX. CODE CRIM.

PROC. ANN. art. 26.13(b) (West Supp. 2012). A defendant is presumed competent to

stand trial and shall be found competent to stand trial unless proven incompetent by a

preponderance of the evidence. Id. art. 46B.003(b) (West 2006). However, when a

suggestion of a defendant’s incompetency is made, a trial court must determine whether

there is some evidence that would support a finding that the defendant is incompetent to

stand trial. Id. art. 46B.004(c) (West Supp. 2012). Whether there is sufficient evidence

to create a bona fide doubt in the mind of the judge whether the defendant is legally

competent is reviewed for abuse of discretion. See Moore v. State, 999 S.W.2d 385,

393 (Tex.Crim.App. 1999).



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       In assessing a defendant’s competency, a trial court may appoint an expert to

examine the defendant and report to the court on the competency of the defendant.

TEX. CODE CRIM. PROC. ANN. art. 46B.021(a) (West 2006). An ordered competency

examination constitutes an inquiry into a defendant’s mental competency. See Criswell

v. State, 278 S.W.3d 455, 459 (Tex.App.—Houston [14th Dist.] 2009, no pet.). Thus, we

conclude that the trial court did inquire into appellant’s competency to stand trial in a

manner sufficient to comply with article 46B.004(c). Further, nothing in the record of

appellant’s plea of guilt suggests that appellant was incompetent to stand trial or enter a

plea of guilty. Consequently, we overrule appellant’s first issue.


                             Ineffective Assistance of Counsel


       By his second issue, appellant contends that he was constructively deprived of

counsel during voir dire because his attorney failed to hear a prospective juror whom

the trial court excused. Because appellant presents his issue as one of a complete

deprivation of the assistance of counsel, he contends that prejudice is presumed. We

conclude that appellant was not constructively deprived of counsel and, therefore, will

overrule his second issue.


       Generally, claims of ineffective assistance of counsel require proof that counsel’s

performance was so deficient that counsel was not functioning as the counsel required

by the Sixth Amendment, and that counsel’s deficient performance prejudiced the

defense to such an extent that the defendant was deprived of a fair trial. Strickland v.

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

when a defendant’s attorney is absent or prevented from assisting the defendant at a

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critical stage of his prosecution, prejudice to the defendant is presumed. See United

States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Voir dire is

a critical stage of a defendant’s prosecution. Eason v. State, 563 S.W.2d 945, 946-47

(Tex.Crim.App. 1978). Constructive denial of counsel occurs only in a very narrow

spectrum of cases where the circumstances leading to counsel’s ineffectiveness are so

egregious that the defendant can be said to have been essentially denied any

meaningful assistance at all. Childress v. Johnson, 103 F.3d 1221, 1229 (5th Cir. 1997).

However, merely “‘bad lawyering, regardless of how bad, does not support the [per se]

presumption’ of prejudice under Cronic.” Id. (quoting McInerney v. Puckett, 919 F.2d

350, 353 (5th Cir. 1990)).


        In the present case, after general voir dire, it was determined that certain

prospective jurors needed to be interviewed individually. The first such prospective

juror, Mr. Ramirez, stated that it would be hard for him to judge the defendant because

he has a grandson that is going to court and Ramirez hopes that he “gets off for his

deal.” The trial court asked Ramirez if he was saying that he did not feel that he “could

be fair and impartial because of your grandson’s situation.” Ramirez told the court, “I

don’t feel it’s right for me to go judge somebody else and I’m hoping that he gets off for

his situation, too.” The trial court then, sua sponte, excused Ramirez. After Ramirez

was excused and left the courtroom, appellant’s trial counsel asked what Ramirez had

said.   When informed of what Ramirez had said, appellant’s trial counsel stated,

“[s]ounds like a fair juror to me.”




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      To establish a claim for deprivation of counsel, appellant must prove that his trial

counsel could have taken the action appellant claims he should have taken and that, if

counsel had taken that action, there was sufficient evidence supporting that action to

establish that it would have been accepted by the trial court. See Jackson v. State, 973

S.W.2d 954, 957 (Tex.Crim.App. 1998) (appellant must prove that motion to suppress

would have been granted to establish that he was deprived of counsel by counsel’s

failure to file motion to suppress). In the present case, the record reflects that Ramirez

was excused by the trial court, rather than challenged for cause. Compare TEX. CODE

CRIM. PROC. ANN. art. 35.03, § 1 (West Supp. 2012), with art. 35.16 (West 2006). A trial

court’s excusal of a prospective juror is reviewed for abuse of discretion. Murray v.

State, 861 S.W.2d 47, 51 (Tex.App.—Texarkana 1993, pet. ref’d).


      Initially, we note that appellant’s issue does not challenge the propriety of the trial

court’s excusal of Ramirez. Appellant fails to present any argument contending that the

trial court abused its discretion in excusing Ramirez. Additionally, while appellant is

correct in contending that a prospective juror should not be excused for cause so long

as the prospective juror can set aside his personal feelings about a matter and follow

the law as instructed, see Riley v. State, 889 S.W.2d 290, 296 (Tex.Crim.App. 1993),

nothing in the record before this Court indicates that Ramirez could set aside his

personal feelings arising from his grandson’s situation and follow the law as instructed.

An allegation of ineffective assistance of counsel must be firmly founded in the record,

and the record must affirmatively demonstrate the alleged ineffectiveness. See Bone v.

State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002). Appellant’s argument is premised on

the assumption that, had appellant’s trial counsel heard what Ramirez said to the trial
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court, trial counsel could have rehabilitated Ramirez. However, the record before us

does not reflect that such rehabilitation would be possible. As such, appellant has failed

to prove that his trial counsel could have objected to the trial court’s excusal of Ramirez

as an abuse of discretion, and that, even if counsel had been able to and had taken that

action, that counsel’s efforts to rehabilitate Ramirez would have been effective and

accepted by the trial court. See Jackson, 973 S.W.2d at 957.


         Consequently, we conclude that appellant has failed to establish that he was

constructively deprived of the assistance of counsel at a critical stage of his prosecution.

Further, we conclude that appellant has failed to establish that his counsel’s failure to

question prospective juror Ramirez rendered counsel’s assistance ineffective. As such,

we overrule appellant’s second issue.


                                        Conclusion


         Having overruled both of appellant’s issues, we affirm the judgment of the trial

court.




                                                 Mackey K. Hancock
                                                     Justice


Do not publish.




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