                                  NO. 07-01-0230-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                    APRIL 23, 2002

                         ______________________________


                       RICARDO JALOMO LOPEZ, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

              FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                 NO. B 13766-0006; HONORABLE ED SELF, JUDGE

                        _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


      Appellant Ricardo Jalomo Lopez appeals from his conviction for aggravated assault.

By two issues he urges that his challenge of a juror was improperly denied and that he

received ineffective assistance from his trial counsel. We affirm.


                                    BACKGROUND
        Appellant was indicted by a Hale County grand jury for the offense of aggravated

assault. See TEX . PEN . CODE ANN . § 22.02(a)(2) (Vernon 1994). The indictment arose

from an incident in which appellant met Herlinda Esparza at a dance, took her in his car

to “get a drink,” and then stopped on a rural road and allegedly choked and hit her.

Esparza graphically described appellant’s placing an extension cord around her neck from

behind, telling her that he was going to kill her, and tightening the cord so that she blacked

out and had residual red rings on her neck.


        Appellant pled not guilty and the case was called for jury trial on April 26, 2001.

Following completion of voir dire of the jury venire, the trial court recessed the venire and

allowed counsel to present challenges for cause. Counsel for appellant challenged three

members of the panel for cause, and the court granted all three challenges. The trial court

then recessed court for counsel to make peremptory challenges. Counsel were instructed

to bring the peremptory challenges to the judge in his chambers. The State turned in its

peremptory challenges. Subsequently, counsel for appellant tendered his peremptory

challenges to the court and also identified a particular veniremember by name and number

to the court and challenged the venireperson for cause. The challenge was because “[I]t

was not clear on the record as to whether she had sat on this Grand Jury.”


        The trial court denied the challenge for cause on the basis that it was not timely

presented and was waived. Appellant did not use a peremptory challenge to strike the

venireperson identified and challenged, and that person was seated as a member of the

jury.


                                              2
       Appellant brings two issues. His first issue asserts that the trial court erred in

denying his challenge to the veniremember on the basis that the challenge was not timely

presented and was waived. Issue two urges that his trial counsel rendered ineffective

assistance of counsel because he failed to timely challenge the veniremember who served

on the Grand Jury which indicted appellant.


                        ISSUE 1: THE CHALLENGE FOR CAUSE


       We need not decide if the trial court erred in denying appellant’s challenge as it was

worded and at the time it was made. For, even if appellant is correct that the trial court

erroneously denied his challenge, when the trial court errs in overruling a challenge

against a venireperson, the defendant is harmed only if the defendant uses a peremptory

strike to remove that venireperson and thereafter suffers a detriment from the loss of the

strike. See Garcia v. State, 887 S.W.2d 846, 852 (Tex.Crim.App. 1994). Error was

preserved for appeal only if appellant used a peremptory challenge to strike the

venireperson challenged for cause, used all his peremptory strikes, asked for and was

refused additional peremptory strikes, and was then forced to take an identified

objectionable juror whom appellant would not otherwise have accepted had the trial court

granted his challenge for cause or granted him additional peremptory strikes so that he

might strike the juror. Id.


       At the time appellant made his challenge of venireperson 18 for cause, appellant

also presented the trial court with his peremptory challenges, none of which had been



                                             3
used to strike venireperson 18. Whether we classify appellant’s actions as “waiver,” as

did the trial court, whether we classify the actions as failure to preserve error, or whether

we conclude that appellant has not shown that he was harmed by the trial court’s actions,

the effect is the same: we must overrule appellant’s first issue. For, as an appellate court,

we uphold the trial court's decision if it was correct under any theory of law applicable to

the case, regardless of whether the trial court gave the correct reason for its decision. See

Jones v. State, 982 S.W.2d 386, 389 (Tex.Crim.App. 1998). We overrule issue one.


                   ISSUE 2: INEFFECTIVE ASSISTANCE OF COUNSEL


         Appellant’s second issue is related to his first issue. He asserts that his counsel

was ineffective because of counsel’s failure to timely challenge a veniremember who

served on the Grand Jury which indicted appellant for the crime. He bases his issue on

trial counsel’s failure to (1) question the venireperson to find out for certain whether she

served on the Grand Jury which indicted appellant; (2) question the venireperson about

whether her prior knowledge of the case, if any, could be put aside in deliberations if she

were on the jury; (3) properly challenge the venireperson, pursuant to TEX . CRIM . PROC .

CODE ANN . art. 35.16(a)(7) (Vernon 1999), for having been a Grand Juror on the case; and

(4) preserve error in regard to a challenge to the venireperson. His argument that he was

harmed by counsel’s omissions then assumes that venireperson 18 was in fact on the

Grand Jury and that venireperson 18 as a juror could not and did not set aside any prior

knowledge she had of the case and reach a decision solely on the evidence presented at

trial.


                                              4
       In determining whether counsel’s representation was so inadequate as to violate

a defendant’s Sixth Amendment right to counsel,1 Texas courts adhere to the two-pronged

test enunciated in Strickland v. Washington, 466 U.S.668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). See Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). The burden

is on appellant to prove by a preponderance of the evidence that counsel was ineffective.

See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). The defendant must

first prove that counsel’s performance was deficient, i.e., that counsel’s assistance fell

below an objective standard of reasonableness. Id. If appellant has demonstrated

deficient assistance of counsel, it is then necessary that appellant affirmatively prove

prejudice as a result of the deficient assistance. Id. In proving prejudice, appellant must

prove a reasonable probability that but for counsel’s errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. See Hernandez, 726 S.W.2d at 55.


       Any allegation of ineffective assistance of counsel must be firmly founded in the

record. The record must affirmatively demonstrate both ineffectiveness and prejudice.

See McFarland, 928 S.W.2d at 500. Failure to make the required showing of either

deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. If the

record is silent about the reasons for the questioned actions or omissions of counsel, then


       1
        Appellant does not specify that his claim is limited to a Sixth Amendment claim.
He does not separately brief or argue a Texas constitutional claim, nor does he argue that
the Texas Constitution provides more protection to him in this matter than does the United
States Constitution. Under such circumstances, we need not and will not address a state
constitution claim separately. See Johnson v. State, 853 S.W.2d 527, 533 (Tex.Crim.App.
1992).

                                             5
an appellate court would have to speculate as to the reasons for the actions or alleged

omissions on the part of trial counsel. A decision based on speculation would be based

on no evidence, even though the actions or alleged omissions might be objectively

unreasonable representation under the first prong of the Strickland test. See Jackson v.

State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994).


       The direct appeal record before us does not prove either prong of appellant’s

ineffective assistance claim. As to the first prong, the record contains no evidence, for

example, of (1) trial counsel’s mental processes in not questioning the veniremember who

expressed some impression of having been on the Grand Jury; (2) what knowledge, if any,

counsel had of the veniremember either from his own prior experience or from information

related to him by others,2 including appellant, see Ex parte Ewing, 570 S.W.2d 941, 947

(Tex.Crim.App. 1978); or (3) why appellant’s counsel did not use a peremptory challenge

to strike venireperson 18 when at the time appellant’s peremptory challenges were

exercised counsel was mindful of the possibility that she had served on the Grand Jury.

We will not conclude that appellant’s counsel was ineffective based on speculation as to

counsel’s knowledge, trial strategy or mental processes. See Jackson, 877 S.W.2d at 771.


       In regard to the second Strickland prong, even if we assume, arguendo, that a

member of the Grand Jury which indicted appellant actually served as a juror, the record


       2
         For example, the jury information card filled out by venireperson 18, which is in the
clerk’s record, reflects that she previously served on both civil and criminal juries. In some
counties a small jury pool affords trial counsel opportunities to encounter jurors repetitively,
or to have access to information on jurors who have previously served. The record before
us does not address such possibilities.

                                               6
does not prove that appellant was harmed. The record reflects that (1) the jury was timely

sworn, see TEX . CRIM . PROC . CODE ANN . art. 35.22;3 (2) during preliminary instructions to

the jury after administering the oath, the trial court cautioned the jurors that “Your oath

states that you will render a verdict based on the evidence that’s admitted to you during

the trial of this case”; (3) the jury charge stated, in part, that “During your deliberations in

this case, you must not consider, discuss, nor relate any matters not in evidence before

you. You should not consider nor mention any personal knowledge or information you may

have about any fact or person connected with this case which is not shown by the

evidence.”


         We presume that juries follow the instructions of the court. See Cobarrubio v. State,

675 S.W.2d 749, 752 (Tex.Crim.App. 1983). This record does not contain evidence that

the jury failed to follow the trial court’s instructions, and we will not speculate to the effect

that it did so. We overrule appellant’s issue two.


                                       CONCLUSION


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

court.


                                                    Phil Johnson
                                                      Justice




         3
       Absent a showing to the contrary in the record, we will presume the regularity of
the proceedings. See Schneider v. State, 594 S.W.2d 415, 418 (Tex.Crim.App. 1980).

                                               7
Publish.




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