                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-13-00862-CR

                                        Martin SANDOVAL,
                                             Appellant

                                                 v.
                                             The State of
                                        The STATE of Texas,
                                              Appellee

                     From the County Court at Law No. 12, Bexar County, Texas
                                      Trial Court No. 340498
                              Honorable Scott Roberts, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: April 23, 2014

AFFIRMED AS MODIFIED

           Martin Sandoval appeals his conviction for driving while intoxicated. In his first issue,

Sandoval contends he received ineffective assistance of counsel. Specifically, Sandoval claims

trial counsel was ineffective by failing to use a peremptory challenge or preserve error when a

panel member served on the jury after counsel’s challenge for cause was overruled. In his second

issue, Sandoval argues the evidence was legally insufficient to support the trial court’s order

assessing court-appointed attorney’s fees. We affirm the trial court’s judgment, but modify it to

delete the assessment of court-appointed attorney’s fees.
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                                        BACKGROUND FACTS

        During general jury voir dire, the prosecutor asked if panel members believed it was okay

to have two to three glasses of wine at dinner and then drive home so long as you are not over the

legal limit. All panel members were given an opportunity to respond. Later, juror number 7 was

brought back to the courtroom for individual questioning and was asked by defense counsel to

elaborate on his response. Juror number 7 clarified his position by saying that he believes if you

drive home after having two to three drinks at dinner, and if it’s outside the legal limit, it would be

wrong. He went on to explain that he believed some people can have two to three drinks and still

be within the legal limit. When neither the State nor the defense had further questions, juror number

7 asked the judge if he could ask a question. He then proceeded to tell the judge that he had been

in an accident with a person who was drunk and under the influence of drugs, “if that makes a

difference.” The judge asked juror number 7 if that “would keep [him] from listening to all the

evidence with an open mind and then rendering a fair and impartial decision, following the law as

provided to [him] by the Court?” Juror number 7 responded, “No. And I can tell you that it ended

a longtime career of mine. But it’s not something that I pursued legally against him, just let the

system take it and run with it. So I still feel I can be impartial.”

        In response to questioning by defense counsel, juror number 7 said he had not been able to

walk or talk after having surgery and that he had to learn how to pick up pens off a table and write

his name. Juror number 7 added, “[i]t was considerable, and that’s why I mentioned it, you know,

do you have a problem with that. But I don’t have a problem being—I still feel that I’m able to be

fair, listen to facts—I think I was just trained that way and I trained my employees that way for

many years.” According to juror number 7, the longtime career that was ended by his accident was

managing insurance agents.



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       Defense counsel then challenged juror number 7 for cause, citing the extent of his injuries

that ended his career. The State responded that juror number 7 had made it clear he could be fair

and impartial. The trial court denied the challenge for cause. After the parties made their

peremptory challenges off the record, the jury was seated, including juror number 7.

                               INEFFECTIVE ASSISTANCE OF COUNSEL

       We measure a claim of ineffective assistance of counsel against the two-prong test

established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See

Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (applying Strickland test). A

person claiming that counsel was ineffective must prove, by a preponderance of the evidence, that

(1) counsel’s performance was deficient, falling below an objective standard of reasonableness,

and (2) the deficient performance prejudiced the defense such that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012). Further, we indulge in a strong

presumption that counsel’s conduct fell within the wide range of reasonable assistance and that the

challenged action might be considered sound trial strategy. Id. “The mere fact that another attorney

might have pursued a different tactic at trial does not suffice to prove a claim of ineffective

assistance of counsel.” Id. “The Strickland test is judged by the ‘totality of the representation,’ not

by counsel’s isolated acts or omissions, and the test is applied from the viewpoint of an attorney

at the time he acted, not through 20/20 hindsight.” Id. Thus, any allegation of ineffectiveness must

be firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Under normal

circumstances, the record on direct appeal will not be sufficient to show that counsel’s

representation was so deficient and so lacking in tactical or strategic decision-making as to

overcome the presumption that counsel’s conduct was reasonable and professional. Bone v. State,

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77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the trial record contain sufficient

information to permit a reviewing court to fairly evaluate the merits of such a serious allegation.

Id.; Thompson, 9 S.W.3d at 813. In the majority of cases, the record on direct appeal is simply

undeveloped and cannot adequately reflect the failings of trial counsel. Bone, 77 S.W.3d at 833.

Trial counsel should ordinarily be afforded an opportunity to explain his actions before being

denounced as ineffective. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). If trial

counsel is not given that opportunity, then the appellate court should not find deficient performance

unless the challenged conduct was so outrageous that no competent attorney would have engaged

in it. Id.

         The appellant must not only show that his attorney’s performance was deficient, i.e., that

his assistance fell below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812.

Assuming the appellant has demonstrated deficient assistance, it is also necessary to affirmatively

prove prejudice. Id. To affirmatively prove prejudice, the appellant must show a reasonable

probability that, but for his attorney’s unprofessional errors, the result of the proceeding would

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

confidence in the outcome. Id.

                                     CHALLENGE FOR CAUSE

         The test on a challenge for cause is whether bias or prejudice would substantially impair

the prospective juror’s ability to carry out his oath and instructions in accordance with the law.

Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009). To preserve error on a challenge

for cause, a defendant must (1) assert a clear and specific challenge for cause; (2) use a peremptory

challenge on the complained-of venire member; (3) exhaust all of his peremptory challenges; (4)

request and be denied additional peremptory challenges; and (5) be forced to accept an

objectionable juror on the jury. Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996).
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                                            DISCUSSION

        Sandoval contends that trial counsel was ineffective for failing to exercise a peremptory

challenge on juror number 7 after the trial court denied Sandoval’s challenge for cause. According

to Sandoval, there was no plausible reason for failure to do so because of the life-changing injury

juror number 7 had suffered at the hands of an intoxicated driver. Sandoval points out the severity

of juror number 7’s injuries and the fact that juror number 7 was concerned enough that he

volunteered the information on his own. Sandoval argues that had his trial counsel exercised a

peremptory challenge on juror number 7, and if this caused him to accept another juror he

considered unacceptable, he should have requested an additional strike. Failing to take these steps,

according to Sandoval, satisfies the first prong of Strickland.

        The State counters that because the record is silent as to trial counsel’s strategy in deciding

not to strike juror number 7, the appellate court would have to engage in speculation in order to

find trial counsel ineffective.

        The Texas Court of Criminal Appeals has considered this issue in a series of cases,

beginning with Delrio v. State, 840 S.W.2d 443 (Tex. Crim. App. 1992). In Delrio, the defendant

was convicted of cocaine possession with intent to deliver. During jury selection, defense counsel

failed to challenge a venireman, an ex-narcotics officer who knew the defendant and who stated

he could not be impartial. Nevertheless, the Court of Criminal Appeals found the record

insufficient to overcome the presumption that “counsel is better positioned than the appellate court

to judge the pragmatism of the particular case, and that he ‘made all significant decisions in the

exercise of reasonable professional judgment.’” Id. at 447 (quoting Strickland, 466 U.S. at 690).

        Next, in Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994), a robbery case, defense

counsel failed to challenge a venireman who had been a burglary victim and who stated that the

burglary would probably have an impact on his impartiality. The Court of Criminal Appeals noted
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that, in Delrio, “the record was silent as to the reasons for defense counsel’s decision not to

challenge [the venireman], and citing the strong presumption in Strickland against a finding of

ineffective assistance, we determined the record insufficient to overcome that presumption.” Id. at

771. Then, turning to the record before it, the Court of Criminal Appeals stated it also was silent

as to why trial counsel failed to challenge the venireman whose impartiality was in question. Id.

“To hold trial counsel’s decision not to strike or challenge [the venireman who could probably not

be impartial] in the instant case as ineffective assistance would also call for speculation.” Id.

       Finally, in State v. Morales, 253 S.W.3d 686 (Tex. Crim. App. 2008), one of the veniremen

who served on the jury was a prosecutor in the same district attorney’s office that was prosecuting

the case. The trial court denied the defense attorney’s challenge for cause, and the attorney failed

to preserve error, if any, because he did not exercise a peremptory challenge on the prosecutor.

The Court of Criminal Appeals found that, even assuming the prosecutor was biased, “that does

not mean that the appellant’s trial counsel could not have made a legitimate tactical decision not

to exercise a peremptory challenge in order to preserve the trial court’s error in overruling his

challenge for cause for appeal.” Id. at 696 (emphasis in original). The Court of Criminal Appeals

further stated that because the right to an impartial jury is a right to be exercised at the option of

the defendant, it is also subject to the legitimate strategic or tactical decision-making processes of

defense counsel during trial. Id. at 697. Comparing the case before it to Delrio, the Court of

Criminal Appeals noted that in Delrio, the prospective juror admitted to an actual bias whereas the

prosecutor’s bias in the case before it had to be presumed or implied. Id. Yet, the Court of Criminal

Appeals noted that in Delrio it held that

       Delrio’s defense attorney could legitimately make a tactical decision, consistent
       with the Sixth Amendment guarantee of effective assistance of counsel, not to
       challenge a prospective juror for cause who was actually biased against his client.
       If it is permissible for trial counsel to retain a juror who is actually biased for
       strategic or tactical reasons, then a fortiori, trial counsel must be permitted to make
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       a strategic or tactical decision to retain a juror who is only presumably biased by
       virtue of her status as an assistant district attorney.

Id. at 698 (emphasis in original).

       In Cervenka v. State, No. 04-10-00279-CR, 2011 WL 1849639 (Tex. App.—San Antonio

May 11, 2011, no pet.) (mem. op., not designated for publication), this court was faced with a

similar ineffective assistance of counsel claim in a sexual assault and indecency with a child case.

On appeal, Cervenka argued his attorney rendered ineffective assistance by failing to strike two

veniremen. During voir dire, one of the veniremen said he could not consider the minimum

punishment of two years’ probation for someone convicted of indecency with a child, and he also

indicated he might feel someone is guilty simply because he is charged with a sex crime. Another

venireman indicated that he believed a child is not likely to lie about sexual abuse. We relied on

Delrio, Jackson, and Morales, and found that

       [e]ven if we were to assume the record demonstrates [the two jurors] were biased
       against Cervenka, the record is completely silent as to trial counsel’s reasons for
       not challenging them for cause or using peremptory strikes against them. Cervenka
       has not provided a record that affirmatively demonstrates the alleged
       ineffectiveness and therefore has not sustained his burden to show counsel’s
       performance was deficient.

Id., at *3-4. We then affirmed the trial court’s judgment.

       Likewise, in the case before us, the record is silent with regard to trial counsel’s reasons

for not exercising a peremptory challenge on juror number 7 or preserving error after the challenge

for cause was denied. We must presume Sandoval’s trial counsel made all significant decisions in

the exercise of reasonable professional judgment. See Delrio, 840 S.W.2d at 447. We simply

cannot speculate. See Jackson, 877 S.W.2d at 771. Sandoval has not provided a record that shows

the alleged ineffectiveness and, therefore, he has failed to satisfy the first prong of Strickland.

       Further, even if we were to assume that Sandoval’s trial attorney was ineffective in not

exercising a peremptory challenge on juror number 7 or preserving error after the challenge for
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cause was denied, he still has not satisfied the second prong of Strickland—prejudice. In order to

show prejudice, Sandoval must show there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. See Thompson, 9

S.W.3d at 812. In his brief, Sandoval urges us to find prejudice, stating that “[b]ecause of the

severe injury to himself and his career caused by an intoxicated driver, [juror number 7] should

never have been permitted to serve on a jury that judged Martin Sandoval for driving while

intoxicated.” This conclusory statement points to nothing in the record to show that the outcome

would have been different if trial counsel had handled jury selection any differently. Thus,

Sandoval has failed to satisfy the second prong of Strickland. See id.

                             COURT-APPOINTED ATTORNEY’S FEES

       In his second issue, Sandoval argues the evidence was legally insufficient to support the

trial court’s order assessing court-appointed attorney’s fees. The State concedes that there is

nothing in the record to show Sandoval’s financial circumstances materially changed since he was

appointed an attorney and, therefore, the evidence was insufficient to support the trial court’s order

for Sandoval to pay court-appointed attorney’s fees. See Smith v. State, 421 S.W.3d 161, 165 (Tex.

App.—San Antonio 2013, no pet.) (reforming the judgment to delete language requiring the

appellant to pay court-appointed attorney’s fees).

       The judgment assesses $1,112.00 in court costs against Sandoval. The record shows these

court costs include $500.00 in court-appointed attorney’s fees. Therefore, we modify the judgment

to assess $612.00, rather than $1,112.00, in court costs against Sandoval. We affirm the judgment

as modified.

                                                   Karen Angelini, Justice


Do not publish


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