                                 NO. 07-02-0455-CR

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL A

                                DECEMBER 9, 2004

                        ______________________________


                        DWAYNE R. MCBEAN, APPELLANT

                                         V.

                        THE STATE OF TEXAS, APPELLEE


                      _________________________________

           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2001-438413; HONORABLE CECIL PURYEAR, JUDGE

                        _______________________________

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


                                      OPINION


      Appellant Dwayne R. McBean appeals from his conviction for aggravated sexual

assault and sentence of 60 years confinement. Presenting two issues, he urges that the

trial court erred by overruling his challenge to a veniremember and that he received

ineffective assistance of counsel during the punishment phase of trial. We affirm.
                                      BACKGROUND


         Appellant Dwayne R. McBean and Tina Williams were involved in an extended

personal relationship during which Williams and her two children would occasionally visit

at appellant’s home.     During one such stay, Williams discovered appellant sexually

assaulting her 13-year old daughter. Appellant was indicted in Lubbock County for

aggravated sexual assault. The Lubbock County District Attorney’s office represented the

State.


         Trial was to a jury. One member of the jury venire was Kim Hayes, an assistant

district attorney in the Lubbock County DA’s office. During voir dire, appellant’s counsel

questioned Hayes as to whether she would be able to be an impartial juror considering that

her employer was the agency prosecuting the case. Hayes stated that she had no

knowledge of or information as to the case and she could be fair and impartial as a juror.

Appellant’s counsel challenged her for cause. Appellant’s counsel also advised the trial

court that there were numerous veniremembers that counsel already had decided to strike

and that if a peremptory challenge had to be used to strike Hayes, which it would be, then

appellant would have to ask the Court to grant an additional peremptory challenge. The

challenge for cause was denied. No other ruling was sought and none was made.


         The docket sheet reflects that following voir dire of the jury venire the parties

exercised their peremptory challenges then the jury was empaneled and sworn. Although

the record does not clearly reflect when the State and appellant handed their peremptory

challenge lists to the clerk, see TEX . CRIM . PROC . CODE ANN . art 35.25, 35.26(a) (Vernon


                                            -2-
1989),1 the reporter’s record shows that at the conclusion of voir dire a recess was taken,

after which the judge announced which veniremembers would comprise the jury. After the

court announced the members of the jury, counsel for appellant stated that one of

appellant’s peremptory challenges had been exercised to strike veniremember Hayes and

the remainder of appellant’s challenges had been used. Counsel then identified the

seventh juror as objectionable and requested an additional peremptory challenge to strike

her. The request was denied and the jury was sworn.


       Appellant was found guilty. During the punishment phase of trial the State introduced

copies of judgments relating to appellant’s prior misdemeanor offenses. Appellant called

two witnesses, Doris Leal, an investigator for the Lubbock County District Attorney’s Office,

and Adam Puckett, a probation officer for Lubbock County. Through Leal appellant raised

the issue of accepting responsibility for criminal behavior. Leal confirmed that appellant

had been placed on community supervision for a misdemeanor offense, pled true to

probation violations during a revocation hearing related to that community supervision, and

had accepted responsibility for violating his community supervision. Puckett was called to

testify regarding probation conditions for sex offenders. Upon cross-examination by the

State, Puckett elaborated on sex offender counseling and the importance of offenders

accepting responsibility for the charged offense in order for the counseling to be effective.


       During summation at the punishment phase, appellant’s counsel reminded the jury

that appellant had accepted responsibility for each of the misdemeanor cases and his


       1
         Reference to a provision of the Code of Criminal Procedure hereafter will be by
reference to “art. _.”

                                             -3-
violations of probation conditions for those cases, and asked the jury to consider probation

as an appropriate punishment. The State made no reference during summation to whether

appellant had accepted responsibility for the aggravated sexual assault pending before the

jury. The jury assessed appellant’s punishment at 60 years confinement.


       Appellant’s first issue asserts that the trial court erred in overruling his challenge for

cause as to veniremember Hayes because she was an employee of the prosecuting

attorney’s office. His second issue alleges ineffective assistance of counsel because

counsel failed to object when the prosecutor allegedly commented on appellant’s failure to

testify and appellant’s exercise of his right to a trial by jury.


                             ISSUE ONE: FAILURE TO GRANT
                           CHALLENGE TO A VENIREMEMBER


       Appellant does not assert that Hayes was personally biased or prejudiced. Instead,

he urges that she was biased as a matter of law because of her employment.


       To preserve error for appellate review the complaining party must make a timely

objection specifying the grounds for the objection if the grounds are not apparent from the

context; the objection must be made at the earliest possible opportunity; the complaining

party must obtain an adverse ruling from the trial court; and the issue on appeal must

correspond to the objection made at trial. See TEX . R. APP . P. 33.1(a)(1)(A)2; Wilson v.




     2
       Reference to a rule of appellate procedure hereafter will be by reference to
“TRAP_.”

                                               -4-
State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002); Dixon v. State, 2 S.W.3d 263, 265

(Tex.Crim.App.1998).


      Appellant urges that he preserved error in regard to the trial court’s denial of his

challenge to Hayes because he complied with the requirements set out in Johnson v. State,

43 S.W.3d 1 (Tex. Crim. App. 2001): he used a peremptory challenge on Hayes, used all

his remaining peremptory challenges, and asked for an additional peremptory challenge

to strike an objectionable, specified veniremember who served on the jury. We disagree

that appellant’s actions to preserve error conformed to those presented in Johnson.


      In Johnson the trial court erroneously denied Johnson’s challenges for cause of two

veniremembers. Johnson used peremptory challenges to strike the two veniremembers

and requested two additional peremptory challenges. The request was denied. Id. at 3.

During voir dire Johnson had identified two objectionable veniremembers who eventually

sat on the jury. Id. at 4. Thus, in Johnson, a non-capital case as is appellant’s case, the

defendant requested additional peremptory challenges, identified specific objectionable

veniremembers before his peremptory challenges were exercised, and used peremptory

challenges to strike the disqualified veniremembers before names of the jury members

were called out. See art. 35.26.


      The record before us shows that appellant did not advise the trial court that he had

used a peremptory challenge to strike Hayes, request an additional peremptory challenge

and identify a specific veniremember who would be struck with the challenge until after he




                                            -5-
exercised his peremptory challenges, turned in his strike list, and members of the jury had

been identified. Appellant’s facts differ from those in Johnson.


       Peremptory challenges to prospective jurors are provided pursuant to statute and

are made without assigning any reason. Art. 34.14. In a non-capital felony case such as

the one under consideration, the State and defendant are each entitled to ten peremptory

challenges. Art. 35.15. The challenges are exercised by the parties striking names of

prospective jurors from lists provided by the clerk, then returning the lists to the clerk. In

a felony trial the first twelve names which have not been struck are called and comprise the

jury. See art. 35.26.


       The trial court’s refusal to excuse a disqualified veniremember pursuant to a

challenge for cause is error, see Johnson, 43 S.W.3d at 5, but does not necessarily

constitute harmful error because a peremptory challenge may be used to strike the

disqualified veniremember . See id. at 5-7. But, when a challenge for cause is erroneously

denied and the challenging party uses a peremptory challenge to strike the disqualified

veniremember, then the erroneous denial may be harmful error because the challenging

party has effectively received fewer peremptory challenges than provided by statute. See

id. at 5-6; Martinez v. State, 763 S.W.2d 413, 415 (Tex.Crim.App. 1988). In such a

circumstance the aggrieved party has suffered harmful error if the party (1) used a

peremptory challenge to strike the challenged, disqualified veniremember; (2) exhausted

all remaining peremptory challenges; (3) requested and was denied an additional

peremptory challenge, and (4) identified a specific veniremember who would have been

removed with the additional challenge, and who thereafter sat as a juror. See Johnson, 43

                                             -6-
S.W.3d at 2, 4, 5-6; Martinez, 763 S.W.2d at 415. In instances of erroneous denial of

challenges for cause, however, the cases do not always clearly distinguish between steps

required to preserve error from harm analysis. See Johnson, 43 S.W.3d at 5 n.6.


       In the matter before us, appellant’s counsel advised the trial court during voir dire

that a peremptory challenge would be used on Hayes and that an additional peremptory

challenge would be asked for. As of that time, however, voir dire was continuing, appellant

had not exercised any peremptory challenges, he was not in the process of exercising his

challenges, nor did appellant specifically identify any veniremember who would be stricken

if an additional peremptory challenge were to be granted. It was only after the parties had

exercised their peremptory challenges and identities of the jurors were revealed that

appellant advised the trial court that he had actually exercised a peremptory challenge to

strike Hayes, made a request for an additional peremptory challenge, identified one of the

chosen jurors as objectionable, and obtained a ruling on the request.


       Article 35.26(a) calls for the parties in non-capital felony cases and in capital felony

cases wherein the death penalty will not be sought to make or decline to make peremptory

challenges before names of those to serve as jurors are determined and the jurors are

called. Allowing either party to exercise a peremptory challenge after the jurors are

identified would not comply with the unambiguous statutory language. See art. 35.25 and

art. 35.26.3


       3
       Nor does it seem to us such process would accord fair treatment to the opposing
party who must exercise peremptory challenges without benefit of knowing which venire
members will be on the jury.


                                             -7-
       Peremptory challenges in civil cases are exercised in a similar manner as that

provided for in criminal cases: following jury voir dire peremptory challenges are made by

striking or erasing names from venire lists and turning the strike lists in to the clerk. In

district court cases the first twelve names not stricken are called and “shall be the jury.”

See TEX . R. CIV . P. 232, 234. In Carpenter v. Wyatt Constr. Co., 501 S.W.2d 748

(Tex.Civ.App.–Houston [14th Dist.] 1973, writ ref’d n.r.e.), a civil case, the court addressed

a fact situation similar to the one before us. In Carpenter, a challenge for cause was made

during voir dire of the jury panel. After peremptory challenges were exercised and the jury

had been selected, but before the jury was sworn or seated, the Carpenters made a bill of

exceptions. In their bill, they complained of the overruling of their challenge for cause,

complained that they were forced to use a peremptory challenge on the venireperson

challenged for cause, and identified a specific, chosen juror on whom they would have

exercised the challenge had they not been forced to use the strike on the challenged

venireperson. The court held that the bill of exceptions was not timely to preserve error.

Id. at 750.


       Language in Carpenter and other civil cases indicates that in order to preserve error

in civil cases the complaining party must identify objectionable veniremembers before

exercising peremptory challenges. See Hallett v. Houston N.W. Med. Ctr., 689 S.W.2d

888, 890 (Tex. 1985) (“For these reasons the complaining party waives any error by not

timely bringing such error to the attention of the trial court prior to making his peremptory

challenges”); Beavers v. Northrop Worldwide Aircraft Servs., Inc., 821 S.W.2d 669, 673

(Tex.App.–Amarillo 1991, writ denied) (Hallett requires that the trial court be told specifically


                                               -8-
which objectionable jurors will remain after peremptory strikes are made and requires such

notification be made prior to the actual exercise of those strikes.); Carpenter, 501 S.W.2d

at 751 (“To preserve error, such objection must be made known before the exercise of

peremptory strikes.”).


       In order for an objection or complaint as to an action of the trial court to be timely,

it must be made at the earliest possible opportunity. See Wilson, 71 S.W.3d at 349; Dixon,

2 S.W.3d at 265. Appellant could have advised the trial court when he actually exercised

his peremptory challenges that he was using a challenge to strike Hayes, was exhausting

the remainder of his challenges, was requesting an additional peremptory challenge and

had to accept a specifically-identified objectionable venireperson because he used a strike

on Hayes. For, it was at that time when appellant’s unbridled right to exercise the full

number of statutory peremptory challenges was violated. See Johnson, 43 S.W.3d at 8

(Keller, P.J., concurring). At that point the trial court could have examined appellant’s strike

list, reconsidered denial of the challenge for cause, and granted the request for another

peremptory strike. See id. at 8, 9 (“Courts should err on the side of granting for cause

challenges, not on denying them . . . if the trial court gives the defendant sufficient extra

peremptory challenges then the error is cured.”) By delaying his request until after the

parties’ peremptory challenges had been exercised and the jury members disclosed,

appellant not only failed to make his complaint known at the earliest time, but delayed

making it known until a time outside that provided by statute for exercising peremptory

challenges. See art. 35.25 and art. 35.26.




                                              -9-
       The conclusion follows that appellant did not timely (1) advise the trial court that he

had actually used a peremptory challenge to strike Hayes and had used all his other

peremptory challenges,4 (2) request an additional peremptory challenge and (3) identify a

specific objectionable juror that he would strike if given an additional peremptory challenge.

Assuming, without deciding, that the trial court erred in denying appellant’s challenge for

cause, error was not preserved for review. TRAP 33.1(a)(1).


       Appellant’s first issue is overruled.5


                         ISSUE TWO: INEFFECTIVE ASSISTANCE
                                       OF COUNSEL


       Appellant did not testify at either the guilt-innocence or punishment phases of trial.

He sought probation by offering testimony of other witnesses at the punishment phase as

to his eligibility for probation, conditions placed on sexual offender probationers, success

rates for sexual offenders placed on probation and his past probation history as shown by

prior misdemeanor judgments granting probation which had been introduced by the State.

Appellant points to three questions asked by the prosecutor on cross-examination of

appellant’s witness Adam Puckett, a probation officer for Lubbock County, which appellant

urges as the basis of his ineffective assistance claim. By those three questions the State




       4
           Of course, the record must substantiate the statement.

        5
          Because of our conclusion, we do not address whether appellant’s objection to the
trial court’s denial of his challenge to Hayes was sufficiently specific to preserve error, nor
whether, as the State contends, appellant’s appellate issue does not correspond to his trial
objection. TRAP 47.1.

                                                -10-
asked about and elicited testimony to the effect that a significant relationship existed

between sexual offender probationers accepting responsibility for their crimes and

successful completion of probation, and that most probationers were in that status because

they pled guilty and took responsibility initially.    Appellant contends that this line of

questioning improperly commented on his right to remain silent and his trial counsel’s

failure to object denied appellant his constitutional right to remain silent. Relying on

Robertson v. State, 100 S.W.3d 36 (Tex.App.–Waco 2002, pet. ref’d), appellant contends

that (1) the prosecutor’s comments on responsibility were an improper reference to

appellant’s failure to testify; (2) the comments were ongoing and flagrant; (3) trial counsel’s

failure to object denied the judge an opportunity to instruct the jury to disregard the

improper reference; (4) the improper remarks greatly affected the jurors during the

punishment phase of the trial; and (5) the improper comments affected the severity of the

punishment imposed by the jury.        Hence, appellant contends, his trial counsel was

ineffective and the violation of his constitutional right to remain silent harmed him because

the jury assessed a more severe punishment than it would have assessed otherwise.


       A claim of ineffective assistance of counsel requires the appellant to show that (1)

counsel’s performance was so deficient that counsel was not functioning as the “counsel”

guaranteed under the Sixth Amendment, and (2) counsel’s deficient performance

prejudiced appellant, depriving him of a fair trial. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).              The defendant must prove by a

preponderance of the evidence that there is no plausible professional reason for a specific

act or omission. See Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). Just as


                                             -11-
a criminal defendant is entitled to an opportunity to explain himself and present evidence

on his behalf, defense counsel should also ordinarily be accorded an opportunity to explain

his or her actions before being labeled as ineffective. Id. A record which is silent as to why

appellant's trial counsel took or failed to take certain actions is generally not adequate to

establish ineffective assistance of counsel. See Rylander v. State, 101 S.W.3d 107, 111

(Tex.Crim.App. 2003). An appellate court will not use speculation as to the reasons for

questioned actions or omissions of counsel to overcome the strong presumption that

counsel made trial decisions in the exercise of reasonable professional judgment. See

Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994); Lopez v. State, 79 S.W.3d

108, 112 (Tex.App.–Amarillo 2002, no pet.).


       Appellant references no evidence of reasons for counsel’s failure to object to the

State’s questions and the witness’s responses. Absent such evidence, and based on the

record before us, the presumption that counsel’s actions were the product of reasonable

professional judgment prevails. We will not use speculation as to counsel’s mental

processes as the basis for concluding that counsel was ineffective.


       Appellant has not shown that trial counsel’s performance was so deficient that

appellant was not afforded the counsel guaranteed by the Sixth Amendment. His second

issue is overruled.


       The judgment of the trial court is affirmed.




                                                         Phil Johnson

                                            -12-
                  Chief Justice



Publish.




           -13-
