      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00536-CR



                                  David Hardeman, Appellant

                                                 v.

                                  The State of Texas, Appellee




    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
        NO. 3021525, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant David Hardeman guilty of attempted murder and aggravated

assault. See Tex. Pen. Code Ann. §§ 15.01, 19.02 (West 2003), § 22.02 (West Supp. 2005). The

jury assessed appellant’s punishment, enhanced by a previous conviction for attempted murder, at

ninety-nine years’ imprisonment and a $10,000 fine for the attempted murder and at eighty years’

imprisonment and a $10,000 fine for the aggravated assault. The only issue presented on appeal is

whether appellant’s trial counsel rendered effective assistance. We will affirm the convictions.

               To prevail on a claim of ineffective assistance of counsel, a defendant must show that

counsel made such serious errors that he was not functioning effectively as counsel and that these

errors prejudiced the defendant’s defense to such a degree that he was deprived of a fair trial. See

Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72

(Tex. Crim. App. 1999). We must indulge a strong presumption that counsel’s conduct fell within
the wide range of reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771

(Tex. Crim. App. 1994). To overcome this presumption, any allegation of ineffectiveness must be

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

ineffectiveness. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). In most cases, the

record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial

counsel’s actions. Id.

                Appellant contends that trial counsel’s representation was constitutionally inadequate

in two respects. First, he complains that counsel failed to preserve a double jeopardy violation for

appeal. Second, he asserts that counsel failed to challenge three venire members who were unable

to consider the full range of punishment.

                The constitutional guarantee against double jeopardy protects against multiple

punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Greater

inclusive and lesser included offenses are the same for double jeopardy purposes. Parrish v. State,

869 S.W.2d 352, 354 (Tex. Crim. App. 1994). Aggravated assault is a lesser included offense of

attempted murder if based on the same act. Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App.

1986); Williams v. State, 622 S.W.2d 578, 579 (Tex. Crim. App. 1981). A double jeopardy violation

may be raised for the first time on appeal if the violation is clearly apparent on the face of the record

and when enforcement of the usual rules of procedural default would serve no legitimate state

interest. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). Raising the issue in the trial

court is important insofar as it is necessary to make a clear record for appeal. Duvall v. State, 59

S.W.3d 773, 777, pet. ref’d).



                                                   2
               When determining whether two offenses are the same in the multiple punishment

context, we compare the offenses as alleged in the indictment. State v. Perez, 947 S.W.2d 268, 272

(Tex. Crim. App. 1997). Count one of the indictment in this cause accused appellant of aggravated

assault in four paragraphs alleging that he intentionally, knowingly, and recklessly caused bodily

injury to the complaining witness by suffocating her with a shirt (paragraph one), striking her with

a glass bottle (paragraph two), striking her with a metal object (paragraph three), and striking her

with a computer (paragraph four). Count two of the indictment accused appellant of attempted

murder in two paragraphs alleging that with the specific intent to commit murder, he attempted to

cause the complainant’s death by suffocating her with a shirt (paragraph one) and striking her with

a metal object (paragraph two). All four paragraphs of count one and both paragraphs of count two

were submitted to the jury disjunctively, and the jury returned general verdicts of guilt.

               Appellant argues that the aggravated assaults alleged in the first and third paragraphs

of count one were lesser included offenses of the attempted murders alleged in count two, but

because the jury could have based the aggravated assault conviction on one of the other two

paragraphs, a double jeopardy violation is not clearly apparent on the face of the record. See Duvall,

59 S.W.3d at 778. Thus, appellant concludes that his attorney’s failure to object subjected him to

double jeopardy that cannot be remedied on appeal.

               The evidence was sufficient to support convictions under all alleged theories of both

offenses.1 Had defense counsel objected to the charge on double jeopardy grounds, the State could


   1
      The complainant testified that appellant struck her on the head repeatedly with a glass bottle
full of change. When she attempted to run away from him, he threw a computer monitor at her,
striking her on the arm. As the struggle continued, appellant pushed the complainant to the floor and

                                                  3
have abandoned the first and third paragraphs of count one, thereby avoiding any risk of double

jeopardy, and still secured convictions for both offenses. Because there is no evidence before us

concerning defense counsel’s reason for not raising the double jeopardy issue at trial, we cannot say

that his failure to make a double jeopardy objection in these circumstances was outside the broad

range of reasonable professional assistance.

               Appellant’s other complaint regarding his representation at trial concerns jury

selection. He points to three venire members, each of whom served on the jury, who answered a

question in a manner suggesting that they would be unable to consider the minimum punishment if

the defendant was a repeat offender. Appellant contends that his counsel was ineffective because

he did not challenge these venire members for being biased against a law on which he was entitled

to rely. See Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (West Supp. 2005). He also complains that

counsel should have questioned these venire members more carefully regarding the right to remain

silent and the goals of the criminal justice system, but he does not point to any other grounds for

challenging them.

               The jury panel was asked several questions, both by the prosecutor and by defense

counsel, regarding the range of punishment. Only once, in response to the one question cited by

appellant, did the three panelists in question indicate an inability to consider the full range of

punishment. Defense counsel had to weigh the panelists’ various answers to determine whether they

were, in fact, biased against the minimum punishment. In performing this task, counsel had the



began to smother her with a shirt. While the shirt was over the complainant’s face, appellant hit her
several times with an object she described as a metal object, perhaps a pipe. The complainant
suffered injuries to her head and arms, including a broken wrist and broken fingers.

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benefit of being able to observe the panelists, a benefit this Court does not have. Absent any

evidence of counsel’s reasoning, we cannot fairly state that his handling of jury selection was

ineffective.

               Appellant has not affirmatively demonstrated that his trial counsel was ineffective.

The point of error is overruled and the judgments of conviction are affirmed.




                                             ___________________________________________

                                             Bob Pemberton, Justice

Before Justices B. A. Smith, Puryear and Pemberton

Affirmed

Filed: May 5, 2006

Do Not Publish




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