Affirmed and Memorandum Opinion filed November 7, 2013.




                                     In The

                      Fourteenth Court of Appeals

                              NO. 14-12-00727-CR

                      JOSE ADRIAN GARCIA, Appellant
                                        V.

                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 179th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1243958

                 MEMORANDUM                     OPINION


      A jury convicted appellant Jose Adrian Garcia of murder, and the trial court
sentenced him to forty-five years in prison. Appellant challenges his conviction in
a single issue, arguing that his trial counsel rendered ineffective assistance of
counsel. We affirm.
                                  BACKGROUND

      Appellant was convicted of the murder of Bonifacio Juarez, the complainant,
by asphyxiating him with a cable. The complainant’s wife testified that she was
having an affair with appellant. The last time she saw the complainant, he was
driving away in a vehicle with appellant.                Following an investigation, law
enforcement authorities traced tire tracks left at the scene where the complainant’s
body was found. It was determined that the tires were unique, and that they
matched the tires on appellant’s vehicle. After his arrest, appellant waived his
Miranda1 rights and admitted strangling the complainant with a red cable and
disposing of the body.

      Appellant testified at trial in his own defense. He testified that he was with
the complainant and a man named Jacinto Martinez on the night the complainant
was killed. Appellant admitted an affair with the complainant’s wife, but testified
that Martinez killed the complainant. Appellant testified that he was driving his
vehicle on the night of the offense with the complainant in the front passenger seat,
and Martinez in the back seat. Appellant parked the car near Martinez’ former
residence and stepped away from the vehicle to relieve himself. Contrary to his
earlier statement made to the police, appellant testified that when he returned to the
car, the complainant was not moving and had the red cable around his neck.
Appellant drove to another location where he and Martinez disposed of the
complainant’s body. A jury convicted appellant of murder.

                                          ANALYSIS

      In a single issue, appellant contends he was denied effective assistance of
counsel because his trial counsel failed to challenge for cause two veniremembers
who expressed bias and served on the jury. Specifically, appellant contends his
trial counsel rendered ineffective assistance in failing to challenge for cause Juror
Number Six and Juror Number Ten.


      1
          See Miranda v. Arizona, 384 U.S. 436 (1966).

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During questioning of Juror Number Six, the following occurred:

MR. McCULLOUGH [defense counsel]: . . . Having heard the voir
dire examination, the questions, and observing my client and all of
those factors, have you formed any opinion or conclusions from what
you heard or seen?
VENIREPERSON: Somewhat, yes.
MR. McCULLOUGH: And what would that be?
VENIREPERSON: That he might be guilty.
MR. McCULLOUGH: Might be guilty.
VENIREPERSON: Uh-huh.
MR. McCULLOUGH: Okay. Well, I think everybody here would
have the opinion that anybody sitting there might be guilty. But the
law says he’s not guilty until the 12 of you who sit there say he is
guilty. Up until that time, he is a suspect or the accused or whatever
word you want to use. And what factors have you heard reinforced
your belief that he might be guilty?
VENIREPERSON: I guess just that fact that he — like the object that
he used to kill this person.
MR. McCULLOUGH: Okay. What object was that?
VENIREPERSON: They said a cable. So, I mean, he obviously had to
do something pretty — he obviously had to try pretty hard if he was
using a cable, you know.
MR. McCULLOUGH: Okay.
THE COURT: Can you wait until you have heard all the evidence?
VENIREPERSON: Yeah.
THE COURT: No evidence has been presented. The indictment can’t
be used against him just because he is here. Can you wait until you
have heard all the evidence before you make a decision?
VENIREPERSON: Yeah. Of course. That’s what I said.
THE COURT: Have you made a decision already?
VENIREPERSON: No, no.

During voir dire, trial counsel had the following discussion with Juror
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Number Ten:

      MR. McCULLOUGH: Sir, you have heard the discussion of the high
      burden that’s placed on the District Attorney to prove his case. Do
      you recall that? Does that seem like an unfair burden to place on the
      State to prove someone’s guilty of a criminal offense? Do you think it
      ought to be easier for the State to make their case?
      VENIREPERSON: Yes.
      MR. McCULLOUGH: You do? So, you think the burden of proving a
      case beyond a reasonable doubt is too difficult for the — or should be
      less than that?
      Should be less than beyond a reasonable doubt?
      VENIREPERSON: You have to prove yourself.
      MR. McCULLOUGH: You think it should be easier or harder for the
      State to prove their case?
      VENIREPERSON: If the State has all the evidence, that would be
      easy to prove.

      Trial counsel did not challenge either Juror Number Six or Juror Number
Ten for cause, nor did he exercise a peremptory challenge to remove either
veniremember. Both served on appellant’s jury. Appellant argues that counsel
rendered ineffective assistance in failing to challenge the jurors for cause because
they exhibited a potential for bias.

      We first address the State’s argument that this Court should not review
appellant’s claim. The State argues that in a direct appeal such as this one, where
the appellant failed to file a motion for new trial alleging ineffective assistance of
counsel or otherwise introduce evidence of trial counsel’s reasons for the
challenged conduct, this Court should “summarily refuse to review” appellant’s
ineffective assistance of counsel claim.      The Court of Criminal Appeals has
determined, however, that appellate courts must review all ineffective assistance
claims. Although “[d]irect appeal is usually an inadequate vehicle for raising [a

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claim of ineffective assistance] because the record is generally underdeveloped,”
such a claim may nonetheless succeed. Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005). Absent an opportunity for trial counsel to explain his or
her actions, appellate courts should not hold that counsel rendered ineffective
assistance unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.”      Id.   Because trial counsel had no such
opportunity here, we address appellant’s claims of ineffective assistance under the
standard announced in Goodspeed.

      To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that (1) counsel’s performance was deficient
because it fell below an objective standard of reasonableness; and (2) the deficient
performance caused appellant prejudice because there is a probability sufficient to
undermine confidence in the outcome that but for counsel’s unprofessional errors,
the result of the proceeding would have been different. See Lopez v. State, 343
S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing Strickland v. Washington, 466
U.S. 668 (1984)). For an appellate court to hold that trial counsel’s performance
was deficient, the record must affirmatively demonstrate the deficiency. Lopez,
343 S.W.3d at 142. “[I]n almost all cases,” direct appeal is an inadequate vehicle
for raising an ineffective assistance claim because the record is generally
underdeveloped. See Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App.
2005); see also Massaro v. United States, 538 U.S. 500, 504–05 (2003).

      Ordinarily, counsel should have an opportunity to explain his or her actions
before being held ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.
App. 2003). Because appellant raises counsel’s allegedly deficient performance
for the first time on direct appeal, it must be apparent from the record “that
counsel’s performance fell below an objective standard of reasonableness as a

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matter of law, and that no reasonable trial strategy could justify trial counsel’s acts
or omissions, regardless of his or her subjective reasoning.” Lopez, 343 S.W.3d at
143.    In other words, as explained above, counsel’s conduct must be “so
outrageous that no competent attorney would have engaged in it.” Goodspeed, 187
S.W.3d at 393.

       Appellant argues that both Juror Number Six and Juror Number Ten
expressed bias against appellant and that, as a matter of law, both would have been
excused from the jury had trial counsel made an appropriate challenge for cause.

       Assuming that both jurors expressed bias toward appellant, we consider
whether counsel may nevertheless have had some strategy relative to jury
selection. See Delrio v. State, 840 S.W.2d 443, 444–47 (Tex. Crim. App. 1992).
In Delrio, during the defendant’s trial for cocaine possession, counsel failed to
challenge for cause or use a peremptory challenge against a panel member who
stated during voir dire that he was a former narcotics officer, knew the defendant
by virtue of this employment, and could not be fair and impartial. Id. at 444–45.
This admittedly biased juror served on Delrio’s jury.        Id. at 445. The court
recognized that a single partial juror will vitiate a conviction; however, the right to
trial by impartial jury is subject to waiver or forfeiture by the defendant in the
interest of overall trial strategy. Id. at 445–46; see also State v. Morales, 253
S.W.3d 686, 697 (Tex. Crim. App. 2008).

       On a cold record, the court held there was insufficient basis to overcome the
presumption that counsel was better positioned than the appellate court to judge the
pragmatism of the case, and that he made all significant decisions in the exercise of
reasonable professional judgment. Delrio, 840 S.W.2d at 446–47. As the court
explained, “[w]aiver of [a] client’s right to insist that every juror in the case be in
all things fair and impartial may in counsel’s best professional judgment have been

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an acceptable gamble.” Id. at 447; see also Morales, 253 S.W.3d at 696–98 (citing
Delrio when holding Morales’ counsel not ineffective for failing to exercise
peremptory challenge, after challenge for cause denied, against panel member who
was an assistant district attorney in office prosecuting defendant).

      Likewise, on this cold record, we cannot foreclose the possibility that
appellant’s counsel had a strategic reason for failing to further question or
challenge Juror Number Six and Juror Number Ten. Although the veniremembers
in this case expressed a potential implied bias, according to precedent of the Court
of Criminal Appeals, this is not sufficient to overcome the presumption his counsel
exercised reasonable professional judgment during jury selection. See Delrio, 840
S.W.2d at 446–47; Morales, 253 S.W.3d at 696–98. Moreover, trial counsel has
not been given a chance to explain his actions. In light of Delrio, we certainly
cannot say that counsel’s decision not to challenge these jurors was so outrageous
that no competent attorney would have reached that decision.

      Appellant further argues that although his complaint about trial counsel’s
conduct during voir dire forms the basis of his ineffective assistance claim, “certain
actions taken by trial counsel during the remaining portions of the trial are worth
noting, as they further demonstrate cumulative deficient conduct.”         Appellant
claims his counsel failed to call rebuttal witnesses or make a closing argument
during the hearing on the motion to suppress his pretrial statement. Appellant also
argues that during the testimony of the complainant’s wife, trial counsel made a
meritless objection that the prosecutor was testifying for the witness. Appellant
claims trial counsel did not understand “a long recognized exception to the rule
excluding leading questions on direct examination . . . when a witness has
difficulty communicating in English.”

      With regard to admission of evidence, appellant argues trial counsel made a

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meritless objection to the admission of the transcripts of appellant’s written
statement.    Counsel objected on the grounds that the transcripts were not
admissible because they did not bear appellant’s signature.

      Appellant further complains that his trial counsel did not object to the
admission of 29 exhibits at the same time. At the time the exhibits were admitted,
the trial court asked counsel if he had an objection to the quantity of exhibits, but
counsel stated he had no objection.

      Appellant further claims that counsel’s closing argument was unusually brief
when compared to the length of the State’s argument. Finally, appellant argues his
counsel demonstrated deficient conduct because of a typographical error in the date
listed in a pretrial motion for interim attorney’s fees.

      Appellant did not include any of the above contentions in his issue on
appeal, nor does he explain how he was prejudiced by the alleged errors. Absent
evidence of why counsel engaged in the conduct complained of, we cannot
conclude that counsel’s actions in failing to present rebuttal witnesses, making
unnecessary objections, failing to make an objection, making a brief closing
argument, or filing a pretrial motion with a typographical error, were so outrageous
that no competent attorney would have engaged in that conduct. See Menefield,
363 S.W.3d at 593. Appellant’s sole issue is overruled.

      The judgment of the trial court is affirmed.


                                         /s/       J. Brett Busby
                                                   Justice


Panel consists of Justices Jamison, McCally, and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).

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