                                       NO. 07-01-0378-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                     JANUARY 7, 2003
                             ______________________________

                                   MANUEL LEON SUAREZ,

                                                              Appellant

                                                  v.

                                    THE STATE OF TEXAS,

                                                  Appellee
                          _________________________________

               FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                  NO. 43,284-B; HON. RICHARD DAMBOLD, PRESIDING
                          _______________________________

Before JOHNSON, CJ., QUINN, J. and BOYD, SJ.1

       Via two issues, appellant Manuel Leon Suarez challenges his conviction for the

offense of aggravated robbery by contending 1) the trial court erred in failing to excuse a

prospective juror for cause, and 2) he was denied effective assistance of counsel because

his counsel failed to request an additional peremptory strike when forced to use a

peremptory strike on the juror who should have been dismissed for cause. We affirm the

judgment of the trial court.

       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. TEX. GOV’T
CODE ANN. §75.002(a)(1) (Vernon 1998).
                         Issue One - Failure to Excuse Juror for Cause 2

        In his first issue, appellant complains that juror Timothy Layton should have been

excused for cause from the jury because Layton was unable to consider probation for any

felony offense. We overrule the issue.

        To preserve error with respect to a trial court’s denial of a challenge for cause, it

must be shown on the record that appellant made a clear and specific challenge for cause,

that he used a peremptory challenge on that juror, that all his peremptory challenges were

exhausted, that his request for additional strikes was denied, and that an objectionable

juror sat on the jury.3 Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996), cert.

denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997). In this instance,

appellant neither challenged Layton for cause nor requested an additional strike. Further,

there is no showing that an objectionable juror sat on the jury. Therefore, appellant has

waived any error with respect to this complaint.

                         Issue Two - Ineffective Assistance of Counsel

        In his second issue, appellant claims he was denied effective assistance of counsel

because his counsel failed to request an additional peremptory strike when he was forced

to use one on Layton who should have been excused for cause. We overrule the issue.




        2
          The background facts of the offense are not relevant to the issues raised by appellant, and we will
therefore not recite them.

        3
          In Johnson v. State, 43 S.W.3d 1, 5 n.6 (Tex. Crim. App. 2001), the court clarified that to show
harm in denying a defense challenge for cause, it must be shown that the appellant exercised his peremptory
challenges on the venire member the trial court failed to excuse, exhausted his peremptory challenges, was
denied a request for additional peremptory challenges, and identified an objectionable juror who sat on the
case.

                                                     2
         The standards by which we review ineffective assistance of counsel claims are well

established. We will not reiterate them but cite the parties to Strickland v. Washington,

466 U.S. 668, 687-95, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Tong v. State, 25

S.W.3d 707 (Tex. Crim. App. 2000) for explanation of the same. Furthermore, the burden

to prove both elements of the claim lies with the appellant, and the claim must be firmly

founded in the record. Rios v. State, 990 S.W.2d 382, 385 (Tex. App.—Amarillo 1999, no

pet.).

         There is no showing in the record as to why counsel chose not to request an

additional peremptory strike. Nor did appellant assert or attempt to prove that because

trial counsel used a peremptory strike to remove Layton, another objectionable juror was

seated. Neither did he argue or attempt to prove that the use of a peremptory strike

against Layton without requesting another somehow 1) tainted the jury, 2) affected its

ability to render a verdict based solely on the facts and law, or 3) prejudiced his defense

against the charges. He simply posits that counsel rendered ineffective assistance

because he did not request an additional peremptory challenge. It may be that trial

counsel found no other venire member objectionable, that the jury he eventually

empaneled was quite acceptable, and that the decision to forego requesting another

peremptory strike was sound trial strategy. Yet, as previously mentioned, the record does

not illustrate counsel’s reasons for remaining silent. So too does it fail to illustrate

prejudice. Thus, appellant neither overcame the presumption that the challenged conduct

might be sound trial strategy, see Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.




                                             3
1994) (requiring that appellant rebut that presumption), nor established prejudice as

required by Strickland and Tong.

      Accordingly, the judgment of the trial court is affirmed.



                                                Brian Quinn
Do not publish.                                   Justice




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