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[W] Landers v. State4/17/2003
operating her vehicle at the time of the accident. We overrule appellant's second issue.
III. Failure to Exercise a Peremptory Challenge Against A Veniremember After A Challenge for Cause is Denied
Appellant's issues three, four, and five assert error in allowing "an openly biased" veniremember to be empaneled as a juror.
At the conclusion of jury voir dire, the trial court heard counsel for both sides state their challenges for cause at a bench conference. Tex. Code. Crim. Proc. Ann., art. 35.16(a) (Vernon 1989); Tex. Code Crim. Proc. Ann., art. 35.16(c) (Vernon Supp. 2001). Both sides agreed to challenge certain veniremembers, and the trial court sustained other challenges by both State and defense, but refused appellant's trial counsel's challenge for cause against veniremember number 37, Ms. Campos. Thereafter, appellant's trial counsel exercised only two of his ten peremptory challenges. Tex. Code. Crim. Proc. Ann., art. 35.15(b) (Vernon Supp. 2001). Neither was used against Ms. Campos. When Ms. Campos and the others selected were seated in the jury box, the trial court asked if either side objected to the panel. Neither side objected, and the jury was sworn.
Issue Three: Failing to Exercise a peremptory challenge against a biased veniremember after the trial court refuses a challenge for cause — Ineffective Assistance of Counsel:
Appellant claims in her third issue that her trial attorney rendered ineffective assistance of counsel by failing to exercise a peremptory challenge to strike Ms. Campos, "an openly biased juror."
A. Ineffective Assistance of Counsel — Standard of Review
To demonstrate ineffective assistance of counsel, an appellant must show, first, that counsel's performance was deficient, i.e., it fell below an objective standard of reasonableness, and, second, that appellant was prejudiced in that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000), cert. denied, 121 S. Ct. 2196 (2002). To be sustained, an allegation of ineffective assistance must be affirmatively demonstrated in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
In reviewing ineffectiveness claims, scrutiny of counsel's performance must be highly deferential. Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. A court must indulge, and a defendant must overcome, a strong presumption that the challenged action might be considered sound trial strategy under the circumstances. Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel's perspective at the time. Strickland, 466 U.S. at 689. Thus, the presumption that an attorney's actions were sound trial strategy ordinarily cannot be overcome absent evidence in the record of the attorney's reasons for his conduct. Busby v. State, 990 S.W.2d 263, 268–69 (Tex. Crim. App. 1999), cert. denied, 120 S. Ct. 803 (2000).
During the trial court's initial voir dire questioning of the venire, Ms. Campos gave a series of answers indicating that she could not accept the principle that the indictment is no evidence of guilt.
Later in its voir dire, however, the trial court discussed the concepts of presumption of innocence and the State's burden to prove guilt. During his own voir dire examination of the panel, appellant's trial counsel reiterated that the State must prove its allegations, and gave a hypo
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